Washington State Court Rejects Charters, Affirms Democratically Governed Public Schools

For many years now, there have been serious questions about whether charter schools are operating in the public interest.  The state laws that establish charter schools are designed to reduce what proponents of privatization call the straitjacket of bureaucracy.  Charters are free from many of the requirements, rules, and regulations that are said by proponents of privatization to constrain innovation in the public schools.

As the charter sector expands, however, serious questions continue to arise about exactly whose interests charter schools serve. Should tax dollars be spent on schools that are permitted to set enrollment caps when the schools’ operators decide when they are full and then turn children away?  Should we be spending tax dollars on schools that fail to provide services for blind or autistic children or children with severe behavior problems, despite that federal law prescribes that well-designed services for all children will be provided by qualified experts? (Such policies too often turn the surrounding public school districts into school districts of last resort for the children who remain in traditional public schools because charters choose not to provide the very expensive services.) Should tax dollars be flowing to schools that forward over 90 percent of revenues to for-profit, nationwide parent Charter Management Organizations, CMOs that, through real estate affiliates, charge the schools themselves outrageous rent—producing added profits for the owners?  If a particular charter school is shut down, should the big for-profit Charter Management Organization get to keep all the books and equipment purchased originally with tax dollars?  And what about the Charter Management Organizations that essentially select their students by locating their schools in particular neighborhoods or by neglecting to offer transportation or federally subsidized lunch?

School choice through charters is also pretty much limited to the children whose parents are equipped to fill out the applications.  Traditional public schools, by contrast, are required by law to serve every child—wherever that child lives and whoever the child’s parents.  A democratically elected local school board has traditionally been seen as most able to ensure that each child’s needs are served and rights are protected, but charter schools are responsible only to private boards.  And too often local charter school board members are recommended by the very national Charter Management Organizations that the local boards are supposedly hiring to run particular schools.  An unregulated and out-of-control charter school sector has arisen, and in many cases the CMOs and the schools are not operating in the public interest.

Although the federal Department of Education has, under Secretary Arne Duncan, promoted charter schools with billions of dollars in federal grants, charter schools are established in state law.  Two weeks ago in the state of Washington, the state’s supreme court found the state’s charter school law unconstitutional.  While one state court’s decision cannot directly affect the rest of us, the Washington court’s action is significant because it validates many of the serious questions being asked about charter schools.

The Washington Post‘s Valerie Strauss describes what happened on September 4 in the state of Washington: “Washington’s charter school law, which narrowly passed in a 2012 referendum with financial support from Microsoft founder Bill Gates and other wealthy philanthropists, has been struck down as unconstitutional by the state’s Supreme Court… (T)he Washington state high court ruled Friday that the law violates the state constitution, which says that public school funds can be used only to support ‘common schools…’  The justices voted, 6 to 3, that charter schools—which are publicly funded but privately run—are not ‘common schools’ because their governing boards are not elected but are appointed by the founders of the individual schools.” The constitutional challenge to the state’s charter law was brought by a coalition that included the League of Women Voters of Washington, El Centro de la Raza, the Washington Education Association, and the Washington Association of School Administrators.  The wealthy donors who underwrote the costs of the 2012 referendum to establish charter schools in the state of Washington, according to Strauss, were Bill Gates, Alice Walton, Nicholas Hanauer, and Jackie and Mike Bezos.

A report from the Education Law Center explains the reasoning of the Washington Supreme Court.  The Supreme Court found that the charter school law passed in 2012 violates Article IX, Section 2 of the Washington state constitution which provides: “The legislature shall provide for a general and uniform system of public schools.  The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established.  But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.”

The Education Law Center adds that the Washington Supreme Court also relied on a precedent established in a 1909 case, School District No. 20 v. Bryan, to define a “common school”: “a common school, within the meaning of our constitution, is one that is common to all children of proper age…, free, and subject to and under the control of the qualified voters of the school district.  The complete control of the schools is a most important feature, for it carries with it the right of the voters through their chosen agents, to select qualified teachers, with the power to discharge them…”

While the action of Washington’s supreme court applies only to the state of Washington, it is significant that the justices in one one state have affirmed bedrock principles that many of us have assumed should define public education and democratic governance—that tax money should be spent for public schools and not diverted to private operators and that public schools ought to be publicly regulated and democratically governed.  Although democratic governance through elected boards of education can guarantee neither perfection nor efficiency, public oversight of schools is most likely to ensure that the schools serve the needs of all children and protect their legal right to an education.

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